Federal Government must fix gaping hole in the Disability Discrimination Act

11 February 2019

People with disability have been dealt a blow, with the Federal Government refusing to fix a significant problem with the law that stops discrimination in employment, education, transport and more.

‘We are deeply disappointed that the Federal Attorney-General has ruled out fixing a new, glaring hole in the Disability Discrimination Act (DDA) that makes it harder for us to get the adjustments we need,’ said Ms Romola Hollywood, Director of Policy and Advocacy, People with Disability Australia (PWDA).

‘Many people with disability need what is known as ‘reasonable adjustments’ to ensure their equal participation. For example, at work, these can be specialised software, adapted office equipment or flexible work arrangements.

‘A recent legal case has undermined the way the DDA works to require employers and service providers to make reasonable adjustments. This has far-reaching and previously unexpected implications for four million Australians with disability and requires an urgent response from the Government,’ said Ms Hollywood.

Jonathon Hunyor, CEO of the Public Interest Advocacy Centre (PIAC) also expressed serious concerns about the impact of the decision:

‘In the case of Sklavos v Australian College of Dermatologists,the Federal Court has found that not only must a person with disability show that they are disadvantaged by a failure to provide a reasonable adjustment, but that the failure to provide the adjustment was caused bythe person’s disability.’

By way of illustration, if a workplace will not provide the software a blind person needs at work, that person must now show the failure to provide that software is because they are blind. In practice, this will be nearly impossible to prove unless the workplace makes a clear statement such as ‘I refuse to make adjustments for you, because you are blind’.

‘This is a surprising outcome and one that unfortunately undermines the effectiveness of the DDA as a means of protecting the human rights of people with disability,’ said Jonathon Hunyor.

‘People with disability fought hard to have an obligation to make reasonable adjustments included in the DDA. The obligation was introduced after a recommendation of the Productivity Commission which recognised the importance of reasonable adjustments for the inclusion and participation of people with disability. The Federal Court decision makes these provisions almost useless, and leaves people with disability without the protection against discrimination that they need,’ said Ms Hollywood.

‘The Federal Government can fix this quickly and easily in the first sitting of Parliament this year, with some minor amendments to the DDA that will ensure people with disability get a fair go,’ said Ms Hollywood.

PIAC and PWDA, with the endorsement of many other organisations and individuals representing people with disability, wrote to the Federal Attorney-General, the Hon Christian Porter MP, late last year seeking an urgent response from government to fix this problem. Unfortunately, the Attorney-General has responded saying that the issue ‘does not represent a priority’ and the Government won’t act before the election.

‘People with disability are without protection from discrimination until these changes are made. We urgently call on the Government, and the Opposition, to work together to make sure people with disability are not discriminated against because of their disability,’ said Ms Hollywood.